Date: 20110531
Docket: IMM-5400-10
Citation: 2011
FC 632
Ottawa, Ontario, May 31, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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JEFFREY JOSEPH ROBERTS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP & IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated August 25, 2010, wherein the Board found that there
were serious reasons for considering that the applicant had committed a serious
non-political crime prior to coming to Canada and was therefore excluded from
seeking refugee protection in Canada under section 98 of the Act and Article
1F(b) of the United Nations Convention Relating to the Status of Refugees
(the Convention).
[2]
The applicant requests that the decision be set aside and the
claim remitted for redetermination by a different member of the Board.
Background
[3]
Jeffrey
Joseph Roberts (the applicant) is a citizen of the United States born on
January 21, 1973.
[4]
In
1998, the applicant was convicted of indecent liberties with a child in the
state of Kansas and
sentenced to 36 months.
[5]
The
applicant entered Canada in 2004 and claimed refugee protection in 2009.
Board’s Decision
[6]
The
Board found that at age 25, the applicant was convicted of indecent liberties
with a child under Kansas Statutes, KSA 21-3503(a)(1) after entering into a
plea agreement. The Board found this to be the equivalent to the Criminal
Code of Canada, RSC 1985 c C-46 section 151, sexual interference, which
carries a maximum penalty of ten years imprisonment and to which consent is not
a defence.
[7]
In
his Personal Information Form (PIF), the applicant stated that he was 22 years
old when he kissed a girl at a party who he did not know was underage. The
Board noted that this differed widely from the evidence of the Sherriff’s
Department of Cowley County which stated that the applicant admitted to having
sexual intercourse with the minor. Further, the applicant admitted in oral
testimony that he was in fact 25 years old at the time.
[8]
The
Board began its analysis by considering whether there was evidence to find that
there are serious reasons for considering that the applicant committed a serious
non-political offence. The Board found that the applicant was represented by
counsel in Kansas, that he
entered into a guilty plea before a judge and pled to the lesser included offence
than the original charge of aggravated indecent liberties with a child, and
that the applicant did not appeal the conviction or sentence. The Board
concluded that on the burden of proof of more than a mere suspicion, there are
serious reasons for considering that the applicant committed a serious
non-political offence.
[9]
The
Board then considered whether the crime was a serious non-political crime. The
Board found that the charge of indecent liberties with a child is non-political.
It concluded that based on the factors in Jayasekara v Canada (Minister of Citizenship and Immigration), 2008 FCA 404 and Xie v Canada (Minister of Citizenship and Immigration), 2003 FC 1023, the crime was also serious and that
if committed in Canada, it would carry a maximum sentence of ten years.
The Board highlighted when considering the sentence, it considers the sentence
that the applicant could have received upon conviction.
[10]
The
Board accepted that the applicant had served his sentence but found that he may
still be excluded from claiming protection. The Board also noted that many
years have passed and the applicant now states that he is a family man.
However, the Board found there to be other factors that demonstrate that the
applicant has not taken full responsibility of his criminal offence in the United
States.
These were:
- the
delay in claiming protection in Canada;
- that he
failed to report to the Kansas Sex Offender Registry 13 times; and
- that
although he claims to have sent a fax indicating he was leaving for Canada
to the authorities in Kansas, he presented only a fax transmission without
any evidence of what information was in the fax, who it was sent to, or
whether it was received.
[11]
The
Board concluded that the applicant committed a serious non-political crime and
should be excluded under section 98 of the Act and Article 1F(B) of the Convention.
Issues
[12]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the Board err in
finding that the applicant had committed a serious non-political crime outside
of Canada?
Applicant’s Written Submissions
[13]
The
applicant submits that the Board did not properly analyze the factors in Jayasekara
above, and of the factors it did mention, it failed to carry out any real
evaluation.
[14]
The
applicant argues that the Board did not consider the mitigating circumstances
that:
- the
applicant completed his sentence;
- the
applicant reported to the sex offender registry for six consecutive years;
- the
applicant’s failure to report was because he had left the jurisdiction out
of fear;
- the
applicant was unaware of the gravity of the sentence when he entered a
plea bargain; and
- that ten
years had elapsed since the conviction.
[15]
The
Board erred in concluding that the applicant has not taken responsibility for
his actions as he showed remorse at the hearing and accepted a plea bargain.
[16]
The
applicant also argues that the Board erred in making an adverse finding that
the applicant had thirteen counts of failure to report against him, since these
incidents occurred because he left he jurisdiction out of fear for his life.
[17]
Finally,
the applicant submits that the Board failed to provide adequate reasons.
Respondent’s Written Submissions
[18]
The
respondent submits that the Board properly considered the factors for assessing
the seriousness of the crime from Jayasekara above.
Those being: “the
elements of the crime, the mode of prosecution, the penalty prescribed, the
facts and the mitigating and aggravating circumstances underlying the
conviction” (at paragraph 44).
[19]
The
Board determined the correct standard of proof to be higher than mere suspicion
and lower than a balance of probabilities.
[20]
The
respondent submits that in assessing whether it was a serious non-political
crime, the Board correctly considered that the offence would carry a maximum
penalty of ten years in Canada with no defence of consent and that the
test for exclusion is the penalty that could have been given to the accused
under Canadian law. The Board also noted that the applicant had pled to a
lesser included offence and that the applicant was required to register with
the Kansas Sex Offender Registry. The Board determined that given the evidence
and elements of the charge and that the applicant did not appeal the sentence
or conviction, there were serious reasons for considering that the applicant
committed a serious non-political offence.
[21]
The
respondent submits that the Board did take into account the fact that the
applicant had completed his sentence in the United States, but found
this to be only one of the factors to consider.
[22]
Further,
the respondent argues that the Board did consider the time passed and the fact
that the applicant now has a family. However, the Board outlined numerous
reasons for why it did not find that the applicant had taken full
responsibility for the offence, including his delaying in seeking protection in
Canada and his
evidence on the failure to report to the sex registry.
[23]
The
respondent submits that it was reasonable for the Board to find that the
applicant had not made attempts to notify the authorities in Kansas before
coming to Canada. While the
applicant had a fax transmission sent, there was no information about what was
contained in the fax. The respondent submits that the applicant’s evidence
about not knowing he had to notify the authorities on this point and the
sending of the fax, were inconsistent.
[24]
The
Board weighed the mitigating factors but reasonably concluded that there were
serious grounds for considering that the applicant committed a serious
non-political crime.
[25]
Finally,
the respondent submits that the Board’s reasons were adequate as they inform
the applicant of the reasons for the finding of exclusion and do not prejudice
his ability to seek judicial review. The reasons must not be read
microscopically but as a whole and as a whole, they were adequate.
Analysis and Decision
[26]
Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue, the
reviewing court may adopt that standard (see Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[27]
The
question of exclusion under Article 1F(b) is one of mixed fact and law and the
reasonableness standard applies (see Jayasekara v Canada (Minister of Citizenship and Immigration), 2008 FC 238, affirmed
by the Federal Court of Appeal in Jayasekara above).
[28]
Issue
2
Did the Board err in finding
that the applicant had committed a serious non-political crime outside of Canada?
The Board’s reasons must not be
read microscopically and held to the standard of perfection. Rather, they
should be assessed as a whole (see Medina v Canada (Minister of Employment and Immigration) (1990), 120 NR 385 (FCA); Ahmed v Canada (Minister of Employment and Immigration) (1993), 156 NR 221 (FCA)).
[29]
After
reviewing the whole of the Board’s decision and reasons, I find that the
conclusion that the applicant is excluded from refugee protection under Article
1F(b) of the Convention was reasonable.
[30]
The
Board considered all of the evidence before it, including the applicant’s PIF
and oral testimony as well as police reports, court documents, the Kansas
Sexual Offender Registry and a letter from the applicant’s former defence
attorney.
[31]
The
Board correctly found that the applicant was convicted of an offence in the
United States of which the equivalent offence in Canada is
punishable with a maximum sentence of ten years imprisonment.
[32]
Contrary
to the applicant’s submissions, I find that the Board did fully consider the
factors outlined by the Federal Court of Appeal in Jayasekara above, in assessing the seriousness of the
crime. In determining whether the applicant was
convicted of a serious crime, the Board looked at the elements of the crime of
indecent liberties with a child and the fact that no defence of consent would
be available in Canada. The Board
considered the evidence of the facts leading up to the offence and accepted
that a statement of agreed upon facts did not exist. The Board noted the
sentence imposed on the applicant and highlighted that he was required to
register on the Sex Offender Registry.
[33]
The
Board also considered that time has passed and that the applicant considers
himself to be a family man. However, the Board reasonably found that these were
not mitigating factors as the applicant has not taken full responsibility for
the crime. This was based on the applicant’s shifting testimony on his age at
the time of the commission of the offence, the finding that he had not informed
the authorities of leaving the jurisdiction and therefore had not reported to
the Sex Offender Registry and his delay of five years in claiming protection in
Canada until faced with the chance of deportation to the U.S.
[34]
The
Board reasonably concluded that the applicant was excluded from refugee
protection under Article 1F(b) and provided adequate reasons how it reached
this conclusion.
[35]
The
application for judicial review is therefore dismissed.
[36]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[37]
IT IS ORDERED
that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, SC 2001, c 27
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98. A person referred to in section E
or F of Article 1 of the Refugee Convention is not a Convention refugee or a
person in need of protection.
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98. La
personne visée aux sections E ou F de l’article premier de la Convention sur
les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
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United Nations Convention and Protocol
Relating to the Status of Refugees
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1F. The
provisions of this Convention shall not apply to any person with respect to
whom there are serious reasons for considering that:
. . .
(b) he has
committed a serious non-political crime outside the country of
refuge prior
to his admission to that country as a refugee;
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1F. Les
dispositions de cette Convention ne seront pas applicables aux personnes
dont on aura
des raisons sérieuses de penser :
. . .
b) qu’elles
ont commis un crime grave de droit commun en dehors du pays
d’accueil
avant d’y être admises comme réfugiées ;
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Kansas
Statute, KSA
21-3503(a)(1)
Statute 21-3503: Indecent liberties with a child.
(a) Indecent liberties with a child is engaging in any of the following
acts with a child who is 14 or more years of age but less than 16 years of age:
(1) Any lewd fondling or touching of the person of either the child
or the offender, done or submitted to with the intent to arouse or to satisfy
the sexual desires of either the child or the offender, or both; or
. . .
(c) Indecent liberties with a child is a severity level 5, person
felony.
Criminal Code of Canada, RSC, 1985, c C-46
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151. Every
person who, for a sexual purpose, touches, directly or indirectly, with a
part of the body or with an object, any part of the body of a person under
the age of 16 years
(a) is guilty
of an indictable offence and liable to imprisonment for a term not exceeding
ten years and to a minimum punishment of imprisonment for a term of
forty-five days; or
(b) is guilty
of an offence punishable on summary conviction and liable to imprisonment for
a term not exceeding eighteen months and to a minimum punishment of
imprisonment for a term of fourteen days.
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151. Toute
personne qui, à des fins d’ordre sexuel, touche directement ou indirectement,
avec une partie de son corps ou avec un objet, une partie du corps d’un
enfant âgé de moins de seize ans est coupable :
a) soit d’un
acte criminel passible d’un emprisonnement maximal de dix ans, la peine
minimale étant de quarante-cinq jours;
b)
soit d’une infraction punissable sur déclaration de culpabilité par procédure
sommaire et passible d’un emprisonnement maximal de dix-huit mois, la peine
minimale étant de quatorze jours.
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